FAMILY LAW: Canadian court changes definition of marriage

by Richard Egan

News Weekly, June 28, 2003

In an extraordinary judgement delivered on June 10, 2003, the three member Court of Appeal for Ontario has, on its own authority, redefined the common law definition of marriage from being "the voluntary union for life of one man and one woman to the exclusion of all others" to now be "the voluntary union for life of two persons to the exclusion of all others".

The Ontario Court is the third Canadian Provincial Court to find in favour of amending the law to facilitate the recognition of marriages between two people of the same sex.

However, in both Quebec (2002) and British Columbia (2003) the courts stayed the declaration that the prohibition on same sex marriage was invalid for two years to allow for the Federal Parliament to remedy the problem.

The Ontario Court refused to allow any such delay and ordered the City of Toronto and the province of Ontario to proceed to issue marriage licences and to register the marriages of the seven gay and lesbian couples who had initiated the suit.

This development makes Ontario the third jurisdiction, along with the Netherlands (2001) and Belgium (2003), in the world to recognise same sex marriages. Vermont and some other jurisdictions have a form of civil registration of same sex relationships which does not make them formally marriages.

Most Canadian Provinces and the Federal Parliament have over the last few years amended all their legislation to bestow on cohabiting couples - both opposite and same sex - all the benefits and privileges of married couples.

However, this was not enough to persuade the Ontario judges that same sex couples were denied equality by their inability to marry.

As well as pointing to minor remaining differences - such as a qualifying period of cohabitation before some benefits could be obtained - the judges stated that "the benefits of marriage cannot be viewed in purely economic terms. The societal significance surrounding the institution of marriage cannot be overemphasised.".

The court rejected an argument put by the Association for Marriage and the Family that the meaning of marriage in Canada's 1867 Constitution was fixed and could not be changed except by referendum. The judges' view was that words in the Constitution can change their meaning entirely under the doctrine of "progressive interpretation" to "meet new social, political and historical realities often unimagined by its framers". Under this theory it is, of course, judges who, like Humpty Dumpty, get to decide what words mean.

This finding has serious implications for Australia, opening up the possibility that in a similar case the High Court could likewise find that the constitutional meaning of marriage has changed. (The Full Bench of the Family Court has already found that the meaning of "man" in the Marriage Act has changed to include a woman who thinks she is a man.

The Howard Government is, according to a spokesman for the Attorney General, still considering whether to seek special leave to appeal this decision to the High Court.)

The Ontario decision may be appealed by the Attorney General of Canada to the Supreme Court of Canada. However, it is likely that the Supreme Court will similarly find that the Canadian Charter of Rights and Freedoms guarantees the right to same sex marriage under its equality provisions.

The Supreme Court decided in 1995 that despite the fact that the Charter didn't mention "sexual orientation" in the list of grounds on which equality was guaranteed it was analogous to sex and race because it is a "deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs".

In opening up marriage to same sex couples the Ontario judges dismissed arguments that there was an intrinsic link between marriage and the capacity of persons of the opposite sex to procreate.

They stressed that same sex couples were having children "by other means". The State, they decided, has no valid interest in only encouraging "natural" procreation. In any case, they opined, marriage is not just about procreation but is about "long lasting, loving and intimate relationships".

Writing in the National Post before the Ontario decision, Douglas Farrow, Associate Professor of Christian Thought at McGill University, said "Marriage is not merely a union of two persons. It is a gendered union with specific social goods attached.

"The state - which did not invent marriage and has no authority to re-invent it - rightly takes an interest in marriage on account of these goods: stability of community and property, of human reproduction and the care of children, of cross-gender and cross-generational bonding, etc. But the courts' new definition eliminates all this, by substituting for a gendered phrase ('one man and one woman') its genderless one.

"This neutered definition mandates a very different institution with extremely limited - and still unproven - social goods. The new institution will attempt to live off the name and earnings of the old one, but it will not be able to do so for long.

"Indeed it will not survive for long, since it will not really be an institution at all but a legal fiction, and an incoherent one at that. Here are a few of the reasons for its inevitable failure.

"First, it is not obvious that it should be 'a union of two persons to the exclusion of all others'. Is not the very idea of an exclusionary institution dubious? In any case, this restriction will affront the dignity of bi-sexuals and polygamists.

"No appeal to the needs of children will suffice to defend it, since the new institution uncouples marriage and procreation, making an orphan of the latter. Besides, it has already been decided that a child can have several parents. Nor should it be overlooked that, in same-sex unions, a third party is required in order to produce children. No, 'two' will not stand up.

"Second, it is not clear why this institution should be sexual in nature, or at least why the state should take any interest in whether it is sexual. The same argument used to exclude procreation as a defining feature can be used to exclude sexual activity altogether. Why should two (or more) spinsters, mutually reliant in every other way, be excluded because they don't venture into each other's erogenous zones? What interest can the state - Trudeau's state! - possibly have in whether they do or don't? 'Union' need not mean sexual intimacy.

"Third, it is doubtful whether this institution should concern the state in the first place. Are people living in pairs better citizens than people living in other forms of community? Take reproduction and cross-gender bonding out of the picture, and what picture is left? What is there of vital interest to the state? In other words, why set up this alternative to marriage at all?"